The Centre for Applied Legal Studies has approached the Gauteng High Court, Johannesburg, on behalf of a mother of two who was convicted of murdering her abusive partner during a domestic violence incident.
Together with the appeal, Centre for Applied Legal Studies is launching a constitutional challenge to ask that courts take a history of domestic violence into consideration in determining such cases.
Domestic violence is recognised as a widespread and life-threatening problem globally and one that particularly affects women and children. Although data can be difficult to gather because of the nature of domestic violence occurring in private spaces and the challenges survivors face in reporting abuse, it is thought that up to 50% of women could experience intimate partner violence in their lifetimes in our country.
“The almost inevitable culmination of escalating domestic violence is that someone will die, most often women,” Sheena Swemmer, the head of the Gender Justice programme at Cals said.
She added that in some instances, victims of abuse might respond to violence with violence.
“For them, it literally becomes a situation of ‘him or me’. We are arguing that our courts need to take this phenomenon into account, to engage properly with psychological aspects of domestic violence and trauma.”
This week, Cals launched an appeal in the case of a domestic violence victim who was convicted of murdering her abusive partner and sentenced to 10 years’ imprisonment by the Palm Ridge Magistrate’s Court in November 2022.
Before her arrest in November 2018, she had spent a year being beaten by her partner. They were so severe that she had suffered a miscarriage. On the night she was arrested, she had been held against her will and raped.
The evidence was not challenged by the state at trial and was accepted as fact by the court.
“We are appealing both our client’s sentence and conviction, arguing that the magistrate failed to provide adequate reasons in her judgment for her guilty finding and failed to properly evaluate the evidence at trial,” Swemmer said.
Cals is also contending that the magistrate did not give enough weight to the woman’s personal circumstances in sentencing her to 10 years’ imprisonment.
In addition to the appeal, Cals is launching a constitutional challenge to the mandatory minimum sentences regime and the Criminal Law Amendment Act.
“The constitutional challenge will demonstrate that these laws are unconstitutional as they fail to take into account the mitigating factors of psychological trauma suffered as a result of gender-based violence, especially intimate partner violence which leads to what is known as battered woman syndrome.”
Basetsana Koitsioe, a gender justice attorney at Cals, said the trends in sentencing showed that there was a pattern of courts discounting expert evidence and witness testimony in cases where women were accused of killing their abusers.
“Our courts make assumptions about what is ‘reasonable’ for a woman who has suffered prolonged abuse to do when they face yet another experience of domestic violence. The harsh approach taken to sentencing fails to understand the psychology of abuse,” Koitsioe said.
Pretoria News